Oveh v Delta Airlines Global Services LLC

Filing 34

OPINION AND ORDER by Judge John E Dowdell ; dismissing/terminating case (terminates case) ; granting 18 Motion for Summary Judgment (Re: 1 Complaint ) (SAS, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
EDWIN OVEH,
Plaintiff,
v.
DAL GLOBAL SERVICES, INC.,
previously named as Delta Airlines
Global Services, LLC,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

Case No. 15-cv-94-JED-PJC

OPINION AND ORDER
This is a pro se employment discrimination action in which Plaintiff Edwin Oveh
(“Plaintiff”) alleges discrimination on the basis of race, color, and national origin in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. Defendant DAL Global Services,
Inc. (“DGS”) filed a Motion for Summary Judgment (Doc. 18) and Brief in Support (Doc. 19) on
October 21, 2015. On November 9, 2015, Plaintiff filed a “Response in Opposition” (Doc. 20) in
which he made a request under Fed. R. Civ. P. 56(d) that the Court either deny DGS’s Motion for
Summary Judgment or defer considering it “until parties have resolved all discovery issues
including material facts still disputed.” (Doc. 20 at 1).1 Notably, the discovery cut-off date in this
case was August 28, 2015.
DGS responded to Plaintiff’s Rule 56(d) request in its Reply (Doc. 21). Subsequently,
Plaintiff filed a Sur-reply (Doc. 22) without leave of this Court. Given the content of the Surreply, the Court will treat it as Plaintiff’s substantive response to the summary judgment motion
and will rule on that motion, as well as the Rule 56(d) request, in this opinion.

1

The page numbers referenced in this opinion are those that appear in the header of each document.

I.

Plaintiff’s Rule 56(d) Request
Rule 56(d) provides that “[i]f a nonmovant shows by affidavit or declaration that, for

specified reasons, it cannot present facts essential to justify its opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take discovery; or
(3) issue any other appropriate order.”
A Rule 56(d) affidavit must (1) identify the probable facts that are unavailable, (2) state why these
facts cannot be presented without additional time, (3) identify past steps to obtain evidence of these
facts, and (4) state how much additional time would allow for rebuttal of the adversary’s argument
for summary judgment. Cerveny v. Aventis, Inc., 855 F.3d 1091, 1110 (10th Cir. 2017). A Rule
56(d) affidavit “must state with specificity how the additional material will rebut the summary
judgment motion.” Burke v. Utah Transit Auth. & Local 382, 462 F.3d 1253, 1264 (10th Cir.
2006) (internal quotation marks and alterations omitted). Additionally, a court “may not look
beyond the affidavit in considering a Rule 56(d) request.” Cerveny, 855 F.3d at 1110.
Plaintiff has submitted an affidavit in which he purports to have “personal knowledge of
the fact that the Defendant has concealed vital evidence concerning this case that has not been
released from their custody/possession.” (Doc. 20 at 4 [Pl.’s Aff. at ¶ 2]). Yet, this affidavit falls
far short of satisfying the elements required of a Rule 56(d) affidavit.
Plaintiff first avers that his coworker, John Kaykay, provided an incident report statement
to their manager, John Watts (“Watts”).2 (Id. [Pl.’s Aff. at ¶ 3]). Other than stating that he has
“personal knowledge of the information that was contained in the report,” (id. [Pl.’s Aff. at ¶ 4]),
Plaintiff makes no attempt to identify the probable facts that this report would show, what steps he

2

Defendant argues it has no such incident report executed by Kaykay. (Doc. 21 at 3).
2

has taken to obtain evidence of these facts, and how the report would rebut DGS’s summary
judgment motion.
Plaintiff also avers that DGS Supervisor Sander Amando (“Amando”) “provided an initial
statement report, and then subsequently provided more additional statement reports for [sic] which
contradicted previous reports including information and findings.” (Id. at 5 [Pl.’s Aff. at ¶ 6]).
Yet these reports have clearly not been “concealed”; indeed, they were all attached to Defendant’s
Motion to Dismiss. (See Doc. 19 at 56-57, 69).
Plaintiff submitted a second affidavit (Doc. 20 at 6; Doc. 22 at 8), presumably to bolster
the first. This second affidavit is by Kaykay, and it states:
I wrote a statement report on 03/03/2014 at the request of the station manager (Mr.
John Watts) regarding the aircraft incident that happened on 03/03/2014 involving
Mr. Edwin Oveh. A copy of my statement was handed to Mr. John Watts upon
completion of my duties that morning.
(Id.). This one-paragraph affidavit does not cure the insufficiencies of the first affidavit. Kaykay’s
affidavit does not identify the probable facts that are unavailable, state why these facts cannot be
presented without additional time, identify past steps to obtain evidence of these facts, or state how
much additional time is needed for rebuttal of DGS’s argument for summary judgment. See
Cerveny, 855 F.3d at 1110. Because Plaintiff has failed to meet the elements required of a Rule
56(d) affidavit, his request for additional discovery is denied.
II.

Defendant’s Motion for Summary Judgment
A.

Background

DGS is a company that provides aviation services for its parent company, Delta, as well as
other airlines. Plaintiff was employed as a ramp agent with DGS at the Tulsa International Airport
beginning on January 23, 2013.

3

Past Infractions
During the approximately fourteen months Plaintiff was employed by DGS, he was written
up multiple times for job-related incidents. On March 9, 2013, Plaintiff was issued a Counseling
Form because “[t]he ramp and bagroom failed to load a standby bag” onto a flight. (Doc. 19 at
45). This Counseling Form included a warning that failure to comply with baggage loading
procedures would result in “further disciplinary action up to and including termination of
employment.” (Id.). Plaintiff received another Counseling Form in late June 2013 due to a
baggage loading delay. Plaintiff refused to sign this second Counseling Form, instead writing
“Not my fault” and “wrongly blamed.” (Id. at 46).
Plaintiff was issued additional Counseling Forms on July 13, 2013, for driving a tug
without a seat belt, and on July 25, 2013, for failing to complete a security form for an aircraft.
(Id. at 47-48). On August 2, 2013, Plaintiff received a Warning Letter for failing to complete PreOperational Inspection (POI) forms. The Warning Letter stated that “[a]ny additional problems in
this area, or any infraction of Company policy or failure to meet Company standards, may result
in more serious discipline up to and including termination.” (Id. at 49). Plaintiff refused to sign
the letter and, instead, wrote the following explanation:
The real issue was that equipment [was] moved from the ramp, so their [sic] is no
way for one person to do the POI . . . Secondly their [sic] was no way one person
can do it within that short time. So, no reason to sign this Sir!

(Id.).
After the Warning Letter, Plaintiff received two more Counseling Forms:

one on

November 3, 2013, for failing to complete POI forms, and another on November 20, 2013, for
putting the wrong date on a security form. Both of these Counseling Forms included warnings

4

that further infractions “may result in more serious discipline up to and including termination.”
(Doc. 19 at 50-51).
The Frozen Pipe Incident
In late February 2014, Plaintiff signed up to “babysit” an aircraft by himself on the night
of March 2. This was his first time taking this type of assignment. (See Doc. 1 at 8). Babysitting
an aircraft involves ensuring that the plane receives heat throughout the night—either through a
hook-up from the jet bridge or, if necessary, from a portable heat cart located on the tarmac. (Doc.
19 at 34 [Watts Aff. at ¶ 15]). Employees babysitting a plane must also flush the toilets and run
the faucets periodically to prevent the aircraft’s water lines from freezing. (Id).
On the night of the shift, Plaintiff was by himself with the aircraft from approximately 2:00
a.m. to around 4:00 a.m. (Id. at 34 [Watts Aff. at ¶ 16]). The outdoor temperature that night was
3 degrees with a wind chill of -11 degrees. (Id.). Before 6:00 a.m., the gate agent was notified
that the water lines on the plane were frozen. (Id. [Watts Aff. at ¶ 17]). The frozen water lines
caused a three-hour delay in the aircraft’s departure.
John Watts, the DGS Station Manager at the Tulsa International Airport, initiated an
investigation into the incident. As part of the investigation, Watts gathered written statements by
other DGS employees. Plaintiff’s co-worker, Miquel Smith, submitted the following statement:
Monday March 3, 2014 Edwin [Oveh] stayed overnight with [the aircraft], @ 4 am
Edwin came in OPS [Operations] stating he was cold because the Heat wasn’t
working on Gate B-11 to keep the Plane warm. So I went out about 4:15 to 4:30 to
restart it, But the Heat was still cool, after about 20 mins. The crew came @ 5 am
and that [is] when we learned the water was frozen. I ask[ed] Edwin then why he
didn’t use the portable Heat cart, he said it was to[o] cold.
On Tuesday March 4, 2014, Sander [Amando] ask[ed] Edwin [Oveh] about the
incident on Monday and why he didn’t use the portable Heat cart and he smiled and
said it was to[o] cold.
(Id. at 55).
5

DGS Supervisor Sander Amando submitted two written statements as part of the
investigation. In his first statement, Amando wrote that he was the supervisor on duty when the
plane in question arrived at the gate, that he hooked up the heater to the plane around 9 p.m., and
that “[a]fter everything [was] secured[,] all ramp crew went home and only Edwin stayed back to
watched [sic] the plane.” (Doc. 22 at 5). Amando’s second written statement included a
description of a conversation he purportedly had with Plaintiff:
I asked [Oveh] what happen[ed] to the [aircraft] the other night. He said the heat
wasn’t work[ing] right. I asked him why you [didn’t] called sups [supervisors] or
get the other heatcart. He said it’s to[o] cold to come down.
(Doc. 19 at 57).
In speaking with Watts, Plaintiff denied telling Amando and Smith that the heat had gone
out and that it had been too cold to connect the heat cart. (Id. at 36 [Watts Aff. at ¶ 22]). Plaintiff
also told Watts twice (without being asked) that he did not fall asleep while babysitting the plane.
(Id.). He submitted his own incident report asserting that “the heat never went out during [his]
watch” and that he “was not told to flush the sink and run the toilets.” (Id. at 58). However, during
Watts’s investigation, airport technicians found that the jet bridge was not providing heat to the
aircraft. (Id. at 35 [Watts Aff. at ¶ 19], 53). The technicians subsequently tagged the jet bridge
heating unit “out of use” until further inspection.3
At the end of the investigation, Watts decided to recommend that Plaintiff’s employment
be terminated based on this incident. As of March 7, 2014, DGS’s Serious Incident Review Board
(“SIRB”) had voted to support the termination recommendation. (Id. at 62). The recommendation

3

Plaintiff denies that the jet bridge unit was tagged out of use, calling it “a bloody lie.” (Doc. 19
at 99 [Pl. Dep., p. 130]).
6

was officially approved on March 17, 2014, and Plaintiff’s termination (“due to Company and
Safety Violations”) became effective on that date. (Doc. 19 at 65).
Plaintiff appealed the termination decision, which led to some additional inquiries by
DGS’s Corporate HR Department. (Id. at 120 [Richardson Aff. at ¶ 7]). As part of this process,
Amando sent an email to Watts stating that Plaintiff had been given a list of phone numbers of
people to call if something out of the ordinary happened while babysitting the aircraft. (Id. at 69).
Amando also stated in the email that he had twice instructed Plaintiff that he would need to run
the faucets and flush the toilets on the plane to help keep the water lines from freezing. (Id.).
Watts forwarded Amando’s email to HR, and HR ultimately upheld the termination decision. (Id.
at 71, 120 [Richardson Aff. at ¶ 7]).
Plaintiff then filed a discrimination charge with the Equal Employment Opportunity
Commission (EEOC) alleging discrimination based on race, color, and national origin. (Doc. 1 at
5). After receiving his Notice of Right to Sue (Doc. 1 at 3), Plaintiff filed his Complaint in this
case on February 25, 2015. In his Complaint, Plaintiff asserts that his termination was “due to
race, color (national origin – xenophobia towards specific individuals of colors – Black).” (Doc.
1 at 2). He alleges that he was terminated “based on false allegations of job performance” and that
he “was not given proper instructions about [the] job assignment or description by supervisors.”
(Id.). He also notes that “supervisors were not reprimanded or terminated.” (Id.).
B.

Standards

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 250 (1986). “By its very terms, [the Rule 56] standard provides that the mere

7

existence of some alleged factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that there be no genuine issue of
material fact.” Anderson, 477 U.S. at 247–48 (emphasis in original). “[S]ummary judgment will
not lie if the dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Id. at 248. The courts thus
determine “whether the evidence presents a sufficient disagreement to require submission to a jury
or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251–52. The
non-movant’s evidence is taken as true, and all justifiable and reasonable inferences are to be
drawn in the non-movant’s favor. Id. at 255. The court’s role at the summary judgment stage is
not to weigh the evidence or resolve any disputed issues in favor of the moving party. See Tolan
v. Cotton, 134 S. Ct. 1861, 1866 (2014).
C.

Discussion

Title VII makes it unlawful for an employer “to discharge any individual, or otherwise to
discriminate against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e-2(A)(1). A plaintiff may prove a violation of Title VII “either by
direct evidence of discrimination or by following the burden-shifting framework of McDonnell
Douglas Corp. v. Green, 411 U.S. 792 . . . (1973).” Khalik v. United Air Lines, 671 F.3d 1188,
1192 (10th Cir. 2012). Under McDonnell Douglas, a plaintiff must first establish a prima facie
case of discrimination, which requires that the plaintiff demonstrate that (1) he is a member of a
protected class, (2) he suffered an adverse employment action, and (3) the adverse action occurred
under circumstances giving rise to an inference of discrimination. See Luster v. Vilsack, 667 F.3d
1089, 1095 (10th Cir. 2011).

8

Because DGS has elected not to dispute that Plaintiff can establish his prima facie case,
(Doc. 19 at 20), the Court will move to the next step of the McDonnell Douglas framework. The
burden then shifts to DGS “to articulate legitimate, nondiscriminatory reasons for its employment
decision.” Luster, 667 F.3d at 1092. DGS’s burden here “is one of production, not one of
persuasion.” E.E.O.C. v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1191 (10th Cir. 2000).
DGS has satisfied this burden; its proffered reason for terminating Plaintiff is that his negligence
while babysitting the aircraft on March 3 caused a significant departure delay—after multiple
workplace incidents and warnings that another infraction could “result in more serious discipline
up to and including termination.” (See Doc. 19 at 21, 45-51, 53).
Once the employer articulates its nondiscriminatory justification for the adverse
employment action, the burden then shifts back to the plaintiff to show that the employer’s
proffered justification is pretextual. Luster, 667 F.3d at 1092. “[I]f a plaintiff ‘presents evidence
that the defendant’s proffered reason for the employment decision was pretextual—i.e., unworthy
of belief, the plaintiff can withstand a summary judgment motion and is entitled to go to trial.’”
Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1230 (10th Cir. 2000) (quoting Randle v.
City of Aurora, 69 F.3d 441, 451 (10th Cir. 1995)).
“A plaintiff may show pretext ‘by demonstrating such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for
its action that a reasonable factfinder could rationally find them unworthy of credence and hence
infer that the employer did not act for the asserted nondiscriminatory reasons.’” Luster, 667 F.3d
at 1092-93 (quoting Swackhammer v. Sprint/United Mgmt. Co., 493 F.3d 1160, 1167 (10th Cir.
2007)). In determining whether DGS’s proffered reasons for its employment decision were
pretextual, the Court must examine “the facts as they appear to the person making the decision to

9

terminate plaintiff.” Kendrick, 220 F.3d at 1231. The relevant question “is not whether the
employer’s proffered reasons were wise, fair or correct, but whether it honestly believed those
reasons and acted in good faith upon those beliefs.” Young v. Dillon Cos., Inc., 468 F.3d 1243,
1250 (10th Cir. 2006) (quoting Rivera v. City & Cty. Of Denver, 365 F.3d 912, 924-25 (10th Cir.
2004)).
In Kendrick v. Penske Transportation Services, Inc., a discharged employee argued—
similarly to Plaintiff in this case—that the reasons for his termination were false. 220 F.3d at
1230-31. The circuit court assumed, for purposes of the case, that the employee had established a
genuine issue of fact as to whether he had engaged in the conduct cited by his employer. However,
the Court emphasized that the undisputed evidence showed that the person who terminated the
employee did so “based on his belief” that the employee had engaged in such conduct. Id. at 1231.
“[A] mistaken belief,” noted the court, “can be a legitimate reason for an employment decision
and is not necessarily pretextual.” Id. (quoting E.E.O.C. v. Flasher, Co., Inc., 986 F.2d 1312, 1322
n.12) (alteration in original). In Kendrick, there was no evidence that the employer’s investigation
into the incident was a sham, nor was there evidence that the people leading the investigation and
making the ultimate termination decision acted with a discriminatory motive. As a result, the
circuit court found no genuine issue of material fact as to pretext and ultimately affirmed the
district court’s order granting summary judgment in favor of the employer. Id. at 1232, 1234.
Here, the facts as they appeared to Watts are based on the Counseling Forms and Warning
Letter issued to Plaintiff after the previous job-related incidents, as well as the written statements
by Smith and Amando suggesting that Plaintiff knowingly chose not to use the portable heat cart
to keep the plane warm on the night of the frozen pipe incident. When HR Corporate inquired
further into whether Plaintiff had been properly trained, Watts provided HR with an email by

10

Amando contending that he had instructed Plaintiff twice regarding the sink and toilet procedures.
(Doc. 19 at 71).
Once again, Plaintiff responds to this evidence by calling Smith a “bloody liar” (id. at 95
[Pl. Dep., p. 126]) and arguing that only Amando’s first written statement is credible, whereas his
second statement and email are both “forged/fabricated.” (Doc. 22 at 2). According to Plaintiff,
this first statement proves that Amando “never gave any instruction(s) to the plaintiff as per what
to do, nor did he furnish the plaintiff with any phone number(s).” (Id.). Even assuming, arguendo,
that Amando’s first statement supports that inference,4 Watts still had Smith’s statement
suggesting that (1) Plaintiff knew the heat had gone out from the jet bridge, (2) Plaintiff knew there
was another heat source for the aircraft (the portable heat cart), and (3) Plaintiff chose not to
connect the heat cart because it was “too cold.” Plaintiff’s insistence that Smith is a “bloody liar”
does not create a genuine dispute of material fact regarding whether Watts’s decision to terminate
Plaintiff was pretextual. Even assuming there is a genuine issue of fact regarding whether Plaintiff
was instructed on how to babysit the aircraft, Plaintiff has submitted no evidence to support an
inference that Watts’s termination decision was not based on a good faith belief that Plaintiff was
adequately trained and negligently caused the frozen pipe incident.
Plaintiff argues in his Sur-Reply that his badge records prove he was not sleeping during
work hours. (Doc. 22 at 1). Plaintiff does not provide any guidance in interpreting the eight pages
of records, but it appears to the Court that there was a gap in time between Plaintiff swiping his
badge card at 2:35 a.m. and 4:23 a.m. on the morning of the frozen pipe incident. (Doc. 20 at 8).
Thus, even construing the evidence in favor of Plaintiff, these records do not lend support to his

4

In fact, Amando’s first statement does not say whether he did or did not give Plaintiff instructions
and/or phone numbers. (See Doc. 19 at 56).
11

claim that he did not fall asleep while babysitting the aircraft. More importantly, the Court finds
it irrelevant whether or not Plaintiff fell asleep during his babysitting shift. Although Watts noted
in an email to an HR employee that it was “[his] opinion that Edwin fell asleep onboard the
[aircraft],” (Doc. 19 at 71), Watts’s official recommendation for termination of Plaintiff’s
employment cited Plaintiff’s previous infractions and his failure “to ensure the aircraft remained
heated which resulted in the potable water lines in the aircraft freezing.” (Doc. 19 at 64). In other
words, DGS’s articulated justification for terminating Plaintiff does not rely on him having fallen
asleep.
Another avenue for showing pretext is by providing evidence that plaintiff “was treated
differently from other similarly-situated, nonprotected employees who violated work rules of
comparable seriousness.” Kendrick, 220 F.3d at 1232. In a letter attached to his Complaint and
during his deposition, Plaintiff identified two “supervisors”—Sander Amando and Linda Carter—
that he believes should have been disciplined as a result of the frozen pipe incident. (Doc. 1 at 9;
Doc. 19 at 118 [Pl. Dep., p. 210]). He stated in his Complaint that “supervisors were not
reprimanded or terminated as a result of accountability.” (Doc. 1 at 2). Yet Plaintiff fails to show
that Amando and Carter are similarly-situated employees. Not only does Plaintiff himself call
Amando and Carter “supervisors,” suggesting they held a higher position in the company than he
did, DGS has submitted evidence that Amando and Carter held dissimilar positions (supervisor
and administrative assistant, respectively) than Plaintiff held and had dissimilar duties than
Plaintiff. (Doc. 19 at 38 [Watts Aff. at ¶ 30]). There is simply no evidence upon which a
reasonable factfinder could rationally find DGS’s proffered explanation unworthy of credence.
Because Plaintiff has failed to establish a genuine issue of material fact as to whether
DGS’s proffered reasons for terminating him were pretextual, Defendant’s Motion for Summary

12

Judgment (Doc. 18) is granted. As discussed above, Plaintiff’s request under Fed. R. Civ. P. 56(d)
(Doc. 20) is denied. A separate judgment in favor of Defendant will be entered forthwith.
ORDERED this 30th day of January, 2018.

13